Culture wars are killing marriage
Douglas Farrow
National Post
Wed
Page: A18
Section: Comment
Byline: Douglas Farrow
Source: National Post
[Return to
Homepage] [Return to “Op Ed Archive”]
The Canadian Kulturkampf is heating
up, now that the courts are speaking as one on the marriage issue. Marriage is
a discriminatory institution, a violation of Section 15. It must be abolished.
All that remains is for Parliament to prepare the funerary legislation.
The conceit that the courts' remedy
is not an abolition of marriage, but merely its re-definition, is just that. As
a monogamous heterosexual union, marriage competes with other models (including
homosexual and polygamous ones) for structuring sexual and domestic
arrangements. When prised open by legal force to one or more of these competing
models, it is effectively destroyed.
The conceit may be necessary in
order to escape the charge that the courts are actually ordering illicit
alterations to the 1867 Constitution Act, but a conceit it is. One can no more
capture the essence of marriage by talking about "the union of two
persons" than one can capture the essence of slavery by talking about an
asymmetrical support arrangement. Such abstractions only obscure the definitive
features.
Marriage is not merely a union of
two persons. It is a gendered union with specific social goods attached. The
state -- which did not invent marriage and has no authority to re-invent it --
rightly takes an interest in marriage on account of these goods: stability of
community and property, of human reproduction and the care of children, of
cross-gender and cross-generational bonding, etc. But the courts' new
definition eliminates all this, by substituting for a gendered phrase
("one man and one woman") its genderless one.
This neutered definition mandates a
very different institution with extremely limited -- and still unproven --
social goods. The new institution will attempt to live off the name and
earnings of the old one, but it will not be able to do so for long. Indeed it
will not survive for long, since it will not really be an institution at all
but a legal fiction, and an incoherent one at that. Here are a few of the
reasons for its inevitable failure.
First, it is not obvious that it
should be "a union of two persons to the exclusion of all others." Is
not the very idea of an exclusionary institution dubious? In any case, this
restriction will affront the dignity of bi-sexuals and polygamists. No appeal
to the needs of children will suffice to defend it, since the new institution
uncouples marriage and procreation, making an orphan of the latter. Besides, it
has already been decided that a child can have several parents. Nor should it
be overlooked that, in same-sex unions, a third party is required in order to
produce children. No, "two" will not stand up.
Second, it is not clear why this
institution should be sexual in nature, or at least why the state should take
any interest in whether it is sexual. The same argument used to exclude
procreation as a defining feature can be used to exclude sexual activity
altogether. Why should two (or more) spinsters, mutually reliant in every other
way, be excluded because they don't venture into each other's erogenous zones?
What interest can the state -- Trudeau's state! -- possibly have in whether
they do or don't? "Union" need not mean sexual intimacy.
Third, it is doubtful whether this
institution should concern the state in the first place. Are people living in
pairs better citizens than people living in other forms of community? Take
reproduction and cross-gender bonding out of the picture, and what picture is
left? What is there of vital interest to the state? In other words, why set up
this alternative to marriage at all? Enlightened by our Charter we will rid
ourselves of marriage, as (enlightened by the Bible) we did of slavery. Why not
leave it at that?
Fourth, the major religious communities
will likely refuse to endorse this new institution, and many will refuse to
participate in it. This will highlight its character as a legal fiction. The
public will lose interest in it, and it will cease to be the bearer of any
status in society. As such it will not be coveted, and will no longer do even
the limited service it was created to do, viz., satisfy the appellants' demand
for approbation.
Some, however, will still covet the
respect the religious communities reserve for marriage. As the B.C. judgment
anticipates and the Marc Hall case illustrates, they will continue to sue. And
then the courts will find themselves having to choose between Section 15
equality rights and Section 2 freedoms. This is not supposed to happen and the
remedies for it are -- as yet -- virtually unthinkable. Some of these remedies,
while claiming to balance Section 2 and Section 15, will dangerously erode
freedom of speech, freedom of association, and freedom of religion.
Charter jurisprudence, I fear, has
allowed itself to become a combatant in this culture war. That is why it has
chosen to sacrifice marriage on the altar of a spurious equality right, and to
attempt to resurrect it as "the union of two persons." This is a
futility in which Parliament is about to become complicit. If it does, it will
only drag Canada deeper into a quagmire of competition between two incompatible
visions for society: one which sees marriage as a tried and tested good which
must be privileged, and one which out of jealousy refuses to privilege it,
consequences be damned. Is it really too late to turn back?
- Douglas Farrow is associate
professor of Christian thought at McGill University.